Guide to your rights and responsibilities under the Human Rights Code

Transcription

1 Guide to your rights and responsibilities under the Human Rights Code ISBN: Revised by the Commission: January 15, 2009 Available in various formats: IBM compatible computer disk, audio tape, large print Available on the internet: Disponible en français

2 Table of contents Using the Guide... 4 Commission Policy Statements... 4 Introduction... 5 Preamble... 5 Part I FREEDOM FROM DISCRIMINATION... 6 Services... 6 Accommodation... 7 Harassment in Accommodation... 8 Contracts... 9 Accommodation of person under eighteen... 9 Employment Harassment in Employment Vocational associations and Unions Sexual harassment Sexual Harassment in Housing and Workplaces Sexual solicitation by a person in position to confer benefit, etc Punishment for Exercising Rights Discrimination Not Allowed Part II INTERPRETATION AND APPLICATION Definitions re: Parts I and II Pregnancy Past and presumed disabilities Constructive discrimination Discrimination because of association Announced intention to discriminate Opinion Special programs Application to Commission Designation by Commission Inquiries initiated by Commission End of inquiry Expiry of designation Renewal of designation Effect of designation, etc Crown programs Tribunal finding Age sixty-five and over Canadian citizenship Disability Accommodation Determining if undue hardship Ability to Perform Essential Duties and Requirements Special interest organizations Solemnization of marriage by religious officials

3 Definition Separate school rights preserved Duties of teachers Restrictions of facilities by sex Minimum drinking age Recreational clubs Tobacco and young persons Residential accommodation Shared accommodation Restrictions on accommodation, sex Prescribing business practices Restrictions for insurance contracts, etc Employment Application for employment Questions at interview Employment agencies Special employment Reasonable accommodation Determining if undue hardship Employee benefit and pension plans Compensation Discrimination in employment under government contracts

4 Using the Guide The Guide to Your Rights and Responsibilities Under the Human Rights Code gives a basic overview of Parts I and II of the Ontario Human Rights Code (the Code ). It contains explanations about these parts of the Code. The Guide uses examples to show how the Code would apply in different situations. Many of these examples come from decided cases or are based on facts from human rights claims that have been filed. Commission Policy Statements You will see references throughout this document to policies and guidelines published by the Commission on different sections and grounds of the Code. The Commission s policies and guidelines set standards for how individuals, employers, service providers and policy makers should act to ensure compliance with the Code. They are important because they represent the Commission s interpretation of the Code at the time of publication. 1 In addition, they advance a progressive understanding of the rights set out in the Code. While they are not binding on the human rights tribunal or on courts, they are often given great deference, applied to the facts of the case before the court or tribunal, and quoted in the decisions of these bodies. The Code states that the Human Rights Tribunal of Ontario may consider the Commission s policies in its decision-making. Where a party or an intervenor requests it, the Human Rights Tribunal of Ontario must consider the Commission s policies. Therefore, if you have filed or are intending to file a human rights application with the Human Rights Tribunal, you may request that the Tribunal consider a Commission policy that deals with the subject-matter of your application. The Commission s policy documents provide guidance to the general public on many different human rights issues. For example, the Commission s Policy and Guidelines on Disability and the Duty to Accommodate defines disability, provides guidelines on the duty of employers and others to accommodate people with disabilities, outlines the rights and responsibilities of those involved in the accommodation process, and provides practical examples of what will and will not constitute undue hardship. This information is not legal advice. The official version of the Code can be obtained at Publications Ontario. It is also available on the Commission s website at The Commission s website also provides information on the Code, complete versions of the Commission s published policies, and updates on the Commission s activities. 1 Please note that caselaw developments, legislative amendments, and/or changes in the Commission s own policy positions which took place subsequent to a document s publication date, will not be reflected in that document. For more information, please contact the Ontario Human Rights Commission. 4

5 Introduction The Ontario Human Rights Code is for everyone. It is a provincial law that gives everybody equal rights and opportunities without discrimination in specific areas such as jobs, housing and services. The Code s goal is to prevent discrimination and harassment because of race, sex, disability, and age, to name a few of the fifteen grounds. All other Ontario laws must agree with the Code. The Code was one of the first laws of its kind in Canada. Before 1962, various laws dealt with different kinds of discrimination. The Code brought them together into one law and added some new protections. In June 2008, major changes designed to renew Ontario s human rights system came into effect. As a result of these revisions to the Code, Ontario s human rights system now consists of three separate and independent parts: the Human Rights Tribunal of Ontario the Human Rights Legal Support Centre the Ontario Human Rights Commission. The Human Rights Tribunal of Ontario (the Tribunal ) decides if someone s human rights have been violated. If you think your rights under the Code have been violated, you can file an application directly with the Tribunal. The Tribunal will decide the best way to deal with your situation. It may also decide that your rights have not been violated or that it does not have the power to deal with your case. The Human Rights Legal Support Centre (the Legal Support Centre ) helps people who file applications with the Tribunal. Services may include advice, support and legal representation. The Ontario Human Rights Commission (the Commission ) works on the roots of discrimination in order to effect systemic change. It develops policies and provides targeted public education, monitors human rights, does research and analysis, and conducts human rights inquiries. In matters affecting the broad public interest, it may take its own cases to the Tribunal or intervene in human rights cases before the Tribunal. The Code is divided into an introductory section, or preamble followed by seven main parts. Part I sets out basic rights and responsibilities. Part II explains how the Code is interpreted and applied. Part III explains the role and structure of the Commission. Part IV explains the operation of the Tribunal and how the Code is enforced. Part IV.1 explains the role of the Legal Support Centre. Part V deals with general matters, such as the power to make regulations. Finally, Part VI deals with transitional matters. Preamble Whereas recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the 5

6 world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations; And Whereas it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province; And Whereas these principles have been confirmed in Ontario by a number of enactments of the Legislature and it is desirable to revise and extend the protection of human rights in Ontario; The Preamble to the Code was inspired by the 1948 Universal Declaration of Human Rights, an international statement of rights agreed to by many of the world s nations. It is the basis for many of our human rights protections in Canada and around the world. The Preamble sets the tone and spirit for the Code s basic aim: to create a climate of understanding and respect for all persons, without discrimination. The courts have said that because of the importance of the principles set out in the Code, it should be given abroad and generous interpretation. When there is a difference or conflict between the Code and another Ontario law, the Code usually has priority. Part I FREEDOM FROM DISCRIMINATION Services 1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability. You have the right to be free from discrimination when you receive goods or services, or use facilities. This right applies to: stores, restaurants and bars; hospitals and health services; schools, universities and colleges; public places, amenities and utilities such as recreation centres, public washrooms, malls and parks; services and programs provided by municipal and provincial governments, including social assistance and benefits, and public transit; services provided by insurance companies; and classified advertisement space in a newspaper. 6

7 This section also applies to businesses, government, community agencies and other organizations in Ontario. Services and Age You must be at least 18 years old to file a human rights application on the basis of age under this section. Parents or guardians can file applications on behalf of children and youth under 18. The Code permits special discounts for older persons 2, golden age passes and other benefits for persons over 65 years old. Limits on selling tobacco and alcohol to persons under 19 are also allowed. Services and Religion You have the right to educational, community and other services that respect your sincerely held religious practices and beliefs. 3 Accommodation 2. (1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, disability or the receipt of public assistance. Housing Introduction 4 Use of the term accommodation refers to housing. You have the right to equal treatment when buying, selling, renting or being evicted from an apartment, house, condominium or commercial property. This right also covers renting or being evicted from a hotel room. The Code applies to terms and conditions in contracts and leases such as the amount of rent, security deposits, the requirement of guarantors, occupants rules and regulations, lease termination and eviction. Your right to housing without discrimination also includes suitable access to doors, laundry rooms, swimming pools, other common areas, repairs and other aspects of housing. Housing and Age 2 For more information, please see the Commission s Policy on Discrimination Against Older Persons Because of Age (2007) 3 For more information, please see the Commission s Policy on Creed and the Accommodation of Religious Observances (1996) 4 For more information on your right to be free from discrimination in housing, please see the Commission s background paper on human rights issues arising in housing, Human Rights and Rental Housing in Ontario (2007), and its consultation report, Right at Home. The Commission is currently working on a Policy on Discrimination in Housing which it expects to release in

8 You must be at least 18 years old to file a human rights application on the basis of age, or 16 or 17 years old when you have legally withdrawn from your parents authority. Housing and Public Assistance A landlord cannot discriminate because of a person s income source, such as welfare, family benefits, disability pension, or other forms of public assistance. Shared Housing The Code does not apply if you share housing and a bathroom or kitchen facility with the owner or the owner s family. Same Sex Residences The right to be free from discrimination on the basis of sex does not apply to residences that are male-only or female-only. Applications to Lease and Tenant Screening Landlords can use income information, credit checks, credit references, rental history, guarantees or other similar business practices for selecting prospective tenants, as long as they do so in a manner that is consistent with the Code and its regulations. With respect to the use of income information, Regulation 290/98 under the Code allows landlords to request income information from a prospective tenant only if the landlord also requests credit references, rental history, and credit checks, and to consider income information only together with all the other information that the landlord obtained. The Regulation specifically reaffirms that none of these assessment tools may be used in an unfair manner to screen out prospective tenants based on Code grounds. The criteria must be used in a genuine and non-discriminatory fashion. Adult-only Buildings It is discriminatory under the ground of family status if you are denied housing because you have children. 5 Adult only buildings are not permitted in Ontario except for specific situations such as subsidized seniors residences or care facilities. Harassment in Accommodation (2) Every person who occupies accommodation has a right to freedom from harassment by the landlord or agent of the landlord or by an occupant of the same building because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, marital status, family status, disability or the receipt of public assistance. 5 For more information, please see the Ontario Human Rights Commission s Policy and Guidelines on Discrimination Because of Family Status. 8

9 Harassment means comments or actions that are unwelcome to you or should be known to be unwelcome. You have the right to be free from humiliating or annoying conduct that is based on one or more of the grounds in the Code. Harassment requires a course of conduct, which means that a pattern of behaviour or more than one incident is usually required. For example, a landlord s repeated comments regarding a tenant s wheelchair could be harassment in housing. Although sexual orientation is not specifically included as a ground in this section, the Commission has taken the position that harassment is a form of discrimination. Therefore, a person may file a human rights application alleging harassment in housing on the basis of sexual orientation. 6 Poisoned Environment You might feel that your housing is hostile or unwelcoming to you because of insulting or degrading comments or actions that have been made about others based on a ground in the Code. When comments or conduct of this kind have an influence on others and how they are treated, this is known as a poisoned environment. A poisoned environment cannot, however, be based only on your personal views. You must have facts to show that an objective person would see the comments or conduct resulting in unequal or unfair terms and conditions. Contracts 3. Every person having legal capacity has a right to contract on equal terms without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability. A contract is a legal agreement. It can be a written or verbal agreement. The right to enter into a contract on equal terms covers all steps in the contract, including the offer, acceptance, price or even rejection of a contract. All types of contracts are covered by the Code, including contracts for the purchase of a house, condominium or other type of residential accommodation, and contracts for buying a business, such as office or retail space. For example, an automobile manufacturer cannot refuse to enter into a contract with the owner of a car dealership because the owner is gay. Accommodation of person under eighteen 4. (1) Every sixteen or seventeen year old person who has withdrawn from parental control has a right to equal treatment with respect to occupancy of and contracting for accommodation without discrimination because the person is less than eighteen years old. 6 For more detailed information, please see the Commission s Policy on Discrimination and Harassment Because of Sexual Orientation (2006). 9

10 (2) A contract for accommodation entered into by a sixteen or seventeen year old person who has withdrawn from parental control is enforceable against that person as if the person were eighteen years old. You can claim the right to equal treatment in housing because you are under 18 years of age, if you are 16 or 17 years old, and you have legally withdrawn from your parents authority. If this applies to you, you also have the same legal responsibilities as though you were 18 years old. Employment 5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability. In Ontario, about three-quarters of all human rights claims come from the workplace. Employment General 7 Employment is used in a very general way in the Code. Employees, independent contractors, and volunteers are covered. Human rights applications can be filed against, not only employers, but also contractors, unions or board of directors. Employers and unions have a joint duty to ensure that workplaces are free of discrimination and harassment. The right to equal treatment with respect to employment covers applying for a job, being recruited, training, transfers, promotions, terms of apprenticeship, dismissal and layoffs. It also covers rate of pay, overtime, hours of work, holidays, benefits, shift work, discipline and performance evaluations. People with disabilities have the right to be provided with equipment, services or devices that will allow them to do their job. 8 Employment and Age In employment, you must be at least 18 years old to file a claim stating that you were discriminated against because of your age. There is no age maximum on the right to freedom from discrimination in the workplace on the basis of age. This means that older persons, who feel that they have discriminated against on the basis of their age, may file a human rights claim. 9 Employment and Record of Offences 7 For more detailed information, please see the Commission s publication, Human Rights at Work (2008). 8 For more information, please see the Commission s Policy and Guidelines on Disability and the Duty to Accommodate (2001). 9 Please see the Commission s Policy on Discrimination Against Older Persons Because of Age, (2007). 10

11 When you apply for a job, you cannot be asked whether you have any kind of criminal record. It is, however, legal to ask whether you have been convicted of a federal offence for which you have not received a pardon. You may be asked during an interview whether you are bondable, if that is a requirement for the job. Employment and Unions If you are a member of a union, you may have the right to file a grievance under your collective agreement. Check with your shop steward or representative. Employers cannot come to an agreement with a union or an employee that some or all of the Code does not apply to them. Also, if a union is not supportive of an employer s efforts to meet its obligations under the Code, a human rights application may be filed against the union. Employment and Religion 10 You have the right to employment that respects your sincerely held beliefs and practices. You may have religious needs such as prayer breaks, religious days off, and dress requirements. If you ask your employer to meet these needs, they must be met unless your employer can show that it would be too costly or would create a health or safety risk. Employment Preferences of Certain Organizations Some organizations have a right to give preference in hiring employees who are of the same race, sex, ethnic origin, ancestry, place of origin, colour, creed, age, marital status or disability. This exception applies on two conditions: 1) the organization serves mostly that group of people; and 2) the preference is reasonable, genuine and related to the job duties. Employment Height and Weight Requirements Minimum standards for height and weight are sometimes used to screen out certain job applicants, such as women and racialized persons. Such a standard is only allowed if it: 1) was adopted for a purpose or goal that is rationally connected to the function being performed, 2) was adopted in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal, and 3) is necessary to accomplish its purpose or goal, in the sense that it is impossible to accommodate the claimant without undue hardship. The ultimate issue is whether the person responsible for accommodation has shown that accommodation has been provided up to the point of undue hardship. Employment, Language and Accent For more detailed information, please see the Commission s Policy on Creed and the Accommodation of Religious Observances (1996). 11

12 If you believe you have been discriminated against because of your language or accent, you can make a human rights claim based on a number of grounds, such as ancestry, ethnic origin, place of origin and race. An employer can require that you speak English fluently if it is a genuine job requirement. An employer cannot use language or accent as a way to screen out racialized people or people of particular ethnic origins where language fluency is not really essential to the job. For example, an employer refuses to hire a person from Spain as a school bus driver because he does not speak fluent English. However, being fluent in English is not essential to the job. This could be discrimination because of place of origin. Employment, Medical Examinations and Drug or Alcohol Testing 12 Drug and alcohol dependencies, as well as perceived dependencies, are a form of disability. A person with a disability is protected under the Code against discrimination in the workplace. Testing for alcohol and drug use is a form of medical examination. Employment-related medical examinations or questions, conducted as part of the job screening process, are prohibited. Medical examinations to determine the ability to do the essential duties of a job should only be used after a conditional offer of employment has been made, preferably in writing. Drug and alcohol testing that has no demonstrable relationship to job safety and performance has been found to be a violation of employee rights. Employment Agencies Employment agencies cannot discriminate. They also cannot discriminate at the request of a client. For example, an employer asks an agency to send them a young, attractive woman for a receptionist position. This would be discrimination based on age and sex. Other issues in employment such as applications, medical examinations or inquiries, and interviews are discussed in section 23 of the Code. Harassment in Employment (2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability. 11 Further information can be obtained in the Commission s Policy on Discrimination and Language (1996). For a more complete discussion on racism and racial discrimination, please see the Commission s Policy and Guidelines on Racism and Racial Discrimination, (2005). 12 For more detailed information, please see the Commission s Policy on Drug and Alcohol Testing (2000) and Human Rights at Work (2008). 12

13 Harassment means comments or actions that are unwelcome to you or should be known to be unwelcome. You have the right to be free from humiliating or annoying behaviour that is based on one or more grounds in the Code. Harassment requires a course of conduct, which means that a pattern of behaviour or more than one incident is usually required. Sexual orientation is not included in this section. However, the Commission has taken the position that harassment is a form of discrimination. A claim of discrimination alleging harassment can be made on the ground of sexual orientation. 13 Poisoned Environment You might feel that your workplace is hostile or unwelcoming to you because of insulting or degrading comments or actions that have been made about others based on a ground in the Code. When comments or conduct of this kind have an influence on others and how they are treated, this is known as a poisoned environment. A poisoned environment cannot, however, be based only on your personal views. You must have facts to show that an objective person would see the comments or conduct resulting in unequal or unfair terms and conditions. Vocational associations and Unions 6. Every person has a right to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability. This section deals with your right to join and be treated equally in a union, professional association or other vocational association. This applies to membership in trade unions and self-governing professions, including the terms and conditions of membership, rates of pay and work assignments. It would include employees, employers and managers associations. Sexual harassment 14 Sexual Harassment in Housing and Workplaces 7. (1) Every person who occupies accommodation has a right to freedom from harassment because of sex by the landlord or agent of the landlord or by an occupant of the same building. 13 For more information, please see the Commission s Policy on Discrimination and Harassment Because of Sexual Orientation, (2006). 14 For more detailed information, please see the Commission s Policy on Sexual Harassment and Inappropriate Gender-Related Comments and Conduct (1996) 13

14 (2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee. Harassment in this section means comments or actions based on sex or gender that are unwelcome to you or should be known to be unwelcome. They may include humiliating or annoying conduct. Harassment requires a course of conduct, which means that a pattern of behaviour or more than one incident is usually required for a claim to be made to the Human Rights Tribunal. However, a single significant incident may be sufficiently offensive to be considered sexual harassment. Women and men have the right to be free from sexual harassment. Sexual harassment includes unwelcome sexual contact and remarks, leering, inappropriate staring, unwelcome demands for dates, requests for sexual favours and displays of sexually offensive pictures or graffiti. For example, an employer s repeated and vulgar sexual comments to an employee could constitute sexual harassment. The comments or conduct do not have to be sexual in nature. Someone may tease or bother you because of gender-based ideas about how men or women should look, dress or behave. If you are a transgendered person, you are protected from degrading comments, insults or unfair treatment because of gender identity. 15 Poisoned Environment You might feel that your workplace is hostile or unwelcoming to you because of insulting or degrading comments or actions that have been made about others based on the ground of sex. When comments or conduct of this kind have an influence on others and how they are treated, this is known as a poisoned environment. A poisoned environment cannot, however, be based only on your personal views. You must have facts to show that an objective person would see the comments or conduct resulting in unequal or unfair terms and conditions. Sexual solicitation by a person in position to confer benefit, etc. (3) Every person has a right to be free from, a. a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or b. a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person. You have the right to be free from unwelcome advances or requests for sexual favours made by a boss, supervisor or other person in a position of power. 15 For more information, please see the Commission s Policy on Discrimination and Harassment Because of Gender Identity (2000). 14

15 Example A supervisor makes unwanted sexual advances to an employee. In this situation, it may be implied, directly or indirectly, that a promotion is at risk of being denied if the individual does not agree to accept the advance. If the supervisor punishes the person because he or she rejected the advance, this is called a reprisal. This kind of getting even is against the Code. Example A female employee is fired or demoted because she refused a sexual proposition from her manager. Harassment and Your Safety If you are being harassed at work and have concerns about your safety, please alert someone you believe can assist you. This could be your employer, police, local community agencies and/or women s shelters. Punishment for Exercising Rights 8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing. If you believe that your rights under the Code have been violated, you may contact the Human Rights Legal Support Centre, consult a lawyer of your own choosing, file a human rights application with the Human Rights Tribunal, or file a grievance under your collective agreement to protect your rights. You cannot be punished or threatened with punishment for trying to exercise these rights. Any attempt or threat to punish you is called a reprisal. The following examples may be a form of punishment or reprisal and can result in another human rights claim on that basis: A tenant makes a claim under the Code against a landlord and tells the landlord of this. The landlord then refuses to make requested repairs to the tenant s unit and increases the rent as a form of punishment. An employee believes that he was not promoted in his job because he is racialized. He tells his manager that he will contact the Human Rights Tribunal to see about making a claim of discrimination. The next day, he is fired. An employee quits her job after making a sexual harassment claim under the Code against her employer and obtains new employment. She discovers that her previous employer contacted her present employer and made negative comments about her because of her human rights claim. Discrimination Not Allowed 9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part. 15

16 You have the right to be free from discrimination that is: in a specific social area such as jobs, housing and services, and because of a ground protected by the Code, such as race, disability or sex. Your rights under the Code are not violated if you only have a social area or only have a ground. You must have both. For example, the Code does not apply if a stranger on the street insults you by making a racist comment because this did not happen in a specific social area. 16 The Code will also not apply if you feel you were treated differently in your job due to a personality conflict with your manager, because there is no ground. Discrimination can be unequal or different treatment. You do not have to show that the discrimination is deliberate or malicious. Even if comments are only a joke, they are not allowed if they are offensive and discriminatory based on a ground in the Code. A person discriminates directly when the action itself is discriminatory and when the person acts on his or her own behalf. For example, a building manager who refuses to rent an apartment because he prefers to rent to someone of his own ethnic background is discriminating directly. Indirect discrimination is discrimination carried out through another person. For example, a building manager instructs her superintendent not to rent to people of a particular ethnicity because their food smells too much. The manager can also be named in the human rights claim because she used the superintendent indirectly to discriminate against people because of their ethnic origin. Poisoned Environment You might feel that your workplace or housing is hostile or unwelcoming to you because of insulting or degrading comments or actions that have been made about others based on a ground in the Code. When comments or conduct of this kind have an influence on others and how they are treated, this is known as a poisoned environment. A poisoned environment cannot, however, be based only on your personal views. You must have facts to show that an objective person would see the comments or conduct resulting in unequal or unfair terms and conditions. Example A restaurant owner make negative remarks about African-Canadians. A co-worker of Chinese origin believes that that work environment is poisoned for all racialized people because of these comments. 16 For more information on racism and racial harassment, please see the Commission s Policy and Guidelines on Racism and Racial Harassment (2006) 16

17 Part II INTERPRETATION AND APPLICATION Definitions re: Parts I and II 10. (1) In Part I and in this Part, age means an age that is 18 years or more; You have the right to be free from discrimination on the basis of age if you are at least eighteen years old. 17 In services, goods, facilities, contracts and membership in unions, you can file a claim as long as you are at least eighteen, except for services related to liquor and tobacco for which the minimum age is nineteen. Parents or guardians can file for their minor children. For example, where a child with a disability is not receiving the support and assistance she needs to access educational services, her parents can make a claim on her behalf. Golden age specials or seniors discounts for persons over sixty-five years of age are permissible. In housing, you must be eighteen years of age, unless you have formally withdrawn from the legal control of your parents, in which case you are protected if you are sixteen or seventeen years of age. Refusal to sell or lease living accommodation to families with children under eighteen years of age is not allowed. disability means, a. any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device, b. a condition of mental impairment or a developmental disability, c. a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language, d. a mental disorder, or e. an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; 17 For more detailed information, please see the Commission s Policy on Discrimination Against Older Persons Because of Age (2007) 17

18 The Code does not list all the conditions that may be considered a disability. 18 Disability should be interpreted in broad terms. It includes both present and past conditions, as well as instances in which an individual is perceived or seen to have a disability. For example, if an employer does not hire a job applicant because she thinks he has a mental disorder, the job applicant can make a human rights claim that he was discriminated against on the basis of disability. It does not matter that the job applicant does not, in fact, have a mental disorder since he is perceived or seen as having a disability by the employer. The Code clearly protects people against discrimination on the basis of mental disability, developmental disabilities and learning disabilities. Students with disabilities have the right to freedom from discrimination in school. 19 A disability may be the result of a physical limitation, an ailment, a perceived limitation or a combination of all these factors. The focus is on the effects of the distinction, preference or exclusion experienced by the person and not on proof of physical limitations or the presence of an ailment. Discrimination may also be based on perceptions, myths and stereotypes, generally and specifically, surrounding a disability. Even minor illnesses or infirmities can be disabilities, if a person can show that he or she was treated unfairly because of the perception of a disability. Disabilities that are not obvious to the average observer (also known as non-evident disabilities) are also protected. Examples of non-evident disabilities include chronic fatigue syndrome, back pain, and, of course, certain forms of mental illness. Other disabilities may remain hidden because they only flare up occasionally (e.g. epilepsy, environmental sensitivities). If you have claimed or received benefits under the Workplace Safety and Insurance Act, this would be considered a disability. You do not have to prove that your condition itself is a disability. If you have a disability that requires accommodation at work, you must provide enough information to allow your employer to assist you. This should include information from a qualified professional confirming that you have a disability and stating the assistance you need. For example, you do not want to tell your employer about your heart condition, but you need certain parts of your job changed to accommodate this disability. When your employer asks for proof, you can ask your doctor for a letter saying that you have a medical condition (without being specific) that does not allow you to do certain things, such as climb stairs or lift heavy objects. 18 For more detailed information on discrimination on the basis of disability and the duty to accommodation the needs of people who have disabilities, please see the Commission s Policy and Guidelines on Disability and the Duty to Accommodation (2001). 19 For more detailed information, please see the Commission s Guidelines on Accessible Education (2004). 18

19 You are responsible for certain things, such as making your needs known, giving information about your restrictions or limitations, participating in discussions about possible accommodation solutions, and working with the accommodation provider on an ongoing basis to manage the accommodation process. Your employer (or housing provider, etc.) is responsible for other things, including accepting your requests in good faith (unless there are legitimate reasons not to), getting expert opinions or advice where needed, requesting additional information (if required) to facilitate the accommodation process, taking an active role in arranging the accommodation, keeping your information confidential, and paying the cost of medical documentation (e.g. doctor s notes) setting out accommodation needs, etc. equal means subject to all requirements, qualifications and considerations that are not a prohibited ground of discrimination; Although discrimination is not defined in the Code, equal is. Equal means not only treating people the same way, but may also mean treating people differently. For example, building a ramp for a person with a disability is not equal treatment in the strict sense because a ramp is something built especially for persons with disabilities; but it is a requirement for a person who uses a wheelchair to have equal access to a building. Equal means that when you have been discriminated against because of a ground in the Code, you are entitled to the Code s protection. You do not actually have to prove that you are racialized or gay or that you have a disability or whatever the ground is as long as you can show that the treatment was because of a ground in the Code. For example, two women are dancing together in a bar and the owner interrupts them and asks them to leave. This happens after one of the women overhears the owner say, I don t want people to think this is a gay bar. Even if the women are not lesbians, they are still able to make a human rights claim because they can show that they have been discriminated against because of sexual orientation, or perceived sexual orientation. family status means the status of being in a parent and child relationship; This definition not only includes both biological and adoptive parents but also someone who acts in the position of a parent to a child, such as a legal guardian. 20 Human rights protections for family status include protection against discrimination based on the particular identity of a family member. 21 For example, it would be discriminatory for an employer to take negative actions towards an employee because of personal animosity towards that person s child. 20 For more information on discrimination on the basis of family status, please see the Commission s Policy and Guidelines on Discrimination Because of Family Status (2007). 21 See B. v. Ontario (Human Rights Commission), [2002] 3 S.C.R. 403 at para

20 This ground is often raised in human rights claims involving housing when landlords or property managers limit a housing development or apartment to adults only or show a preference for married couples over single parents. This is not lawful and is discriminatory. This may also be the ground of discrimination when a woman is refused housing or other services or facilities because she is a lone parent or because she is breastfeeding. 22 group insurance means insurance whereby the lives or well-being or the lives and well-being of a number of persons are insured severally under a single contract between an insurer and an association or an employer or other person; You are protected from discrimination in the terms of your group insurance plan. This is usually but not always in relation to employment. However, an insurance company can make a reasonable preference, differentiation, or exclusion because of age, sex, marital status, family status or disability. 23 For example, auto insurance companies classify young males differently than other persons based on their age and sex. This differential treatment has been found to be reasonable and genuine because statistics show that young males are involved in proportionally more (and more serious) accidents than other drivers and because there is no other practical alternative to this type of classification. harassment means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome; Harassment means statements or actions that are not welcome. The other person may know this because you have already told them that the behaviour is not welcome. Or the conduct may be so distressing or annoying that an objective person would agree that the behaviour was unwelcome. Harassment requires a course of conduct, which means that a pattern of behaviour or more than one incident is usually required. However, one incident may be enough to support a finding of harassment where the incident creates a poisoned environment. marital status means the status of being married, single, widowed, divorced or separated and includes the status of living with a person in a conjugal relationship outside marriage; Generally speaking, marital status is being married or in a common law relationship. This definition includes both same-sex and opposite sex partnerships. It also includes 22 For more information on discrimination on the basis of breastfeeding, please see the Commission s Policy on Discrimination Because of Pregnancy and Breastfeeding (2001). 23 See section 22 of the Code. 20

21 being single, widowed, divorced or separated. For example, you cannot be refused employment because you may or may not be married. Human rights protections for marital status include protection against discrimination based on the particular identity of a person s spouse. 24 For example, it would be discriminatory for an employer to take negative actions towards an employee because of personal animosity towards that person s spouse. record of offences means a conviction for, a. an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or b. an offence in respect of any provincial enactment; This ground only applies to employment situations. You cannot be discriminated against in your job because of: pardoned offences under federal law, such as the Criminal Code; and convictions under provincial law, such as the Highway Traffic Act. This protection does not apply to offences where there has only been a charge. It only applies to convictions. When you apply for a job, you cannot be asked whether you have any kind of criminal record. However, you can be asked if you have been convicted of a federal offence for which you have not received a pardon. You can also be asked during an interview whether you are bondable or have a driver s licence, but only where there it is a reasonable and essential requirement for the job. services does not include a levy, fee, tax or periodic payment imposed by law; Services include: stores, restaurants and bars; hospitals and health services; schools, universities and colleges; public places, amenities and utilities such as recreation centres, public washrooms, malls and parks; services and programs provided by municipal and provincial governments, including social assistance and benefits, and public transit; services provided by insurance companies; and classified advertisement space in a newspaper. spouse means the person to whom a person is married or with whom the person is living in a conjugal relationship outside marriage. 24 See B. v. Ontario (Human Rights Commission), [2002] 3 S.C.R

22 Spouse is a person married to or in a common law relationship with another person. This definition includes both same-sex and opposite sex partnerships. Pregnancy (2) The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant. The Code protects a woman because she is or was pregnant, may become pregnant, has just had a baby or other pregnancy-related situations. 25 Pregnancy therefore includes the process of pregnancy from conception up to the period following childbirth and includes the post-delivery period and breastfeeding. The term pregnancy takes into account all the special needs and circumstances of a pregnant woman and recognizes that the experiences of women will differ. Special needs can be related to circumstances arising from: miscarriage abortion complications because of pregnancy or childbirth conditions which result directly or indirectly from an abortion/ miscarriage recovery from childbirth breastfeeding. You have a right to be treated fairly at work. For example, an employer cannot ask Are you pregnant?, Do you have a family? or Do you plan to have a family? during a job interview, unless it is a reasonable job requirement. It is contrary to the Code to fire you, demote you or lay you off (even with notice) because you are or may become pregnant. If you are or may become pregnant, you have the right to keep your job and not to be passed over for benefits and opportunities, such as: being hired or promoted; training; assignments to important or more challenging projects; and resuming your job after your pregnancy or parental leave. Your employer also should change your job duties or modify rules that affect you for the sake of your health or that of your child. The rules about pregnancy leave, parental leave and maternity benefits are set out by the Employment Standards Branch of the Ministry of Labour (Ontario) 26 and by Service Canada (formerly Human Resources Development Canada) For more detailed information, please see the Commission s Policy on Discrimination Because of Pregnancy and Breastfeeding (2001). 26 See 22